'Innocence Of Muslims' Ruling Violates The First Amendment In Two Separate Ways

from the incredible dept

In our post yesterday about Judge Alex Kozinski's horrifically bad ruling in favor of Cindy Garcia, an actress who briefly appeared in the infamous YouTube video "Innocence of Muslims," we also mentioned the astounding gag order that Kozinski placed on Google/YouTube, saying that the company was simply not allowed to tell the world that the video had been ordered censored by a court for at least a week. However, the gag order is so crazy that it seemed worth a second post. It already appears to be a classic First Amendment violation to order Google to take down all copies of the video (and prevent new ones from being uploaded), but Kozinski seems to double the First Amendment problems with that gag order.

Yes, certain court rulings are kept under seal for some period of time, but here's a case where a key video of public interest and discussion was not only being censored, but where the company being ordered to censor the video couldn't even tell anyone what happened for nearly a week. The order to pull down the video came on February 19th, and it was only revealed on the 26th. It now comes out that Google's lawyers went reasonably ballistic over the gag order. Google's full motion seeking an emergency stay highlights just how insane both the takedown and the gag orders are.

A temporary stay is particularly warranted here because
the panel’s order amounts to a dramatic, and highly
unusual, intrusion on Google’s First Amendment and due process rights.
It requires Google to remove a film from public display — a classic incursion on the First Amendment — without even telling Google why, and without any opinion explaining the rationale. The panel took this extraordinary step in an order that it placed under seal, making it difficult (to say the least) for Google to explain to the world why it is removing the Film from the public eye. And, last but not least, the Order imposes a restraint on Google that is broader than anything Ms. Garcia has even requested. Ms. Garcia asked only that the five seconds of footage in which she appeared be removed from Google’s websites. See Reply Br. 5 ("Ms. Garcia seeks only to enjoin the unauthorized posting of her own performance.”). The Order, by contrast, requires that the entire film be taken down, and that Google block anyone from uploading it in the future. The Order also appears to extend to copies of the Film that were not identified in any takedown demand by Ms. Garcia. See 17 U.S.C. 512(c), (j). There is no possible justification for such an order. The vast bulk of the Film has nothing to do with Ms. Garcia, and she asserts no copyright claim over it.

This is, in short, a stunning order, both as a matter of substance and procedure. And to make matters worse, it is difficult for the Defendants to even understand how to fully comply with the Order, given the variety of copies of the Film now available on the Internet and the variety of platforms operated by Google. The Order’s uncertain scope only adds to the urgency of a temporary stay. The Film is not defined with reference to any URL, upload date, or any other meaningful description. A search for “Innocence of Muslims” on YouTube returns over 58,000 results as of this filing, many of which could well contain commentary, news stories, and other works that merely contain some or all of the original video. Google and YouTube will, of course, try to comply with the Order forthwith, but strongly believe the Order should be stayed so that this Court can consider the issues.

The filing goes on to point out that the gag order is clearly illegal:

In addition, the Order unjustifiably gags the defendants from publicly discussing the Order itself, and denies the public access to judicial documents. Under this Court’s case law, when it comes to this Court’s records, “ ‘a strong presumption in favor of access’ is the starting point.” ... In order to withhold documents from public view, the court “must ‘base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.’ ”
The Court’s order did none of those things before directing it be kept from the public docket. For this reason, too, the Order harms Google and the public and should be vacated.

It also points out that it's preposterous to order all such videos (again broadly described) be taken down within 24 hours, given that the film has been online for nearly two years, and keeping it up for a short while longer is hardly going to increase any level of harm (though interfering with First Amendment rights does create harm). It further notes that even Garcia's own lawyers didn't ask for a 24 hours turnaround time on blocking videos.

The whole thing is quite incredible when you think about it. First, ordering the prior restraint of the video is a clear First Amendment violation. But to add a gag order to that doubles the problems. Here's a judge who's not only ordering a result that violates the First Amendment, but is then compounding the problems by violating the First Amendment in blocking anyone from talking about the First Amendment violation in the first place.

As we mentioned in the original post, we're still perplexed at Kozinski's reasoning on all of this (and I've yet to see a single lawyer I know have anything positive to say about the ruling or the gag order). As we've said in the past, generally speaking, Judge Kozinski is one of the more interesting judges out there, and I tend to agree with his rulings more often than not. However, as we pointed out a few years ago, it seems like one serious blind spot for Judge Kozinski is his dislike of the internet and willingness to blame tech companies for actions of users on the internet. In covering a speech he gave in 2011 concerning Section 230 of the CDA (which provides liability protections for internet companies based on actions of their users), we noted:

It turns out that Kozinski is a bit of a closet luddite. When it was pointed out that many of the wonderful things online are probably only there because of safe harbors like Section 230, he pushed back. He pointed out that the internet really isn't that great, and if he had the option of flipping a switch to turn it off, he's not entirely convinced that he would leave it on. He said he's just not sure it's really done that much good, and that we might be better off without it.

[...]

Kozinski did point out that many people don't realize what it's like to be the subject of an anonymous internet attack, and people might feel differently if they were. Now, to be fair, Kozinski has been subject to just such attacks, including a highly publicized situation a few years ago in which an anonymous Kozinski-hater got a bunch of attention directed at Kozinski, after discovering that Kozinski had (sloppily) stored a bunch of jokey viral content on a server that he failed to secure, which got twisted into a claim that he had "obscene" content, leading to a rash of misleading press coverage, and an investigation (which eventually cleared him of any wrong doing).

While the issue here is slightly different, both in context and in statute, Kozinski has shown in the past that he's skeptical of the internet, and appears to overreact to attacks based on things on the internet. That may suggest how he got to the point where such a twisted ruling made sense. However, even if we grant that, it's still impossible to see how it could then possibly make sense to gag Google from explaining why it had taken down such a high profile video.

Not to mention that an extended lawsuit and all the censoring will probably result in millions of views. Something which Cindy Garcia did not intend to happen when she filed the suit. If there was an oscar for stupidity ....

Why the gag order?

However, even if we grant that, it's still impossible to see how it could then possibly make sense to gag Google from explaining why it had taken down such a high profile video.

To prevent people from making copies of the video during the period between the announcement and the taking down of the videos?

Except that still doesn't make sense. If that were the concern, the gag order should have expired upon Google's removal of the videos in question, which they were ordered to do within 24 hours. But the gag lasted about a week.

I cannot fathom the purpose of the gag after that. Unless the court thought that Google might not be able to remove it that fast? But if that's the case, they shouldn't have issued the order with an unreasonable time frame. (Of course, they shouldn't have issued the order at all in the first place, so...)

As Usual Congress to blame!

If this is a Federal Court then Congress is to blame!

Congress is responsible for creating and abolishing lower courts (especially when they go nucking futts). Since no one there (either side) has the spine to prevent Presidents from abusing power then of course they won't deconstruct a lower court for making a BS ruling.

Seems like Congress thinks our Courts have been running 100% Okay! Another sign of this Nations Decline!

Re:

By their very nature something like that would be impossible to count, as the recipients can't talk about them, and the court certainly isn't going to make such an order public, as doing so would negate the entire purpose of the gag order.

Prior Restraint

By forcing Google to take down not just existing copies but also any copies uploaded in the future, it is in essence holding Google responsible for every future act of infringement by Google's users prior to a determination of infringement for each such act. It is, as such, a form of prior restraint.

Even taking "contributory infringement" into account, it's quite a stretch to argue that Google is engaging in contributory infringement by not addressing acts of infringement which have yet to occur. The law does not require Google to monitor its service for infringing content, nor should such a requirement be imposed by a court of law due to said content being once present on Google's servers.

It's apparent that the 9th Circuit did not grant this emergency motion, which does not bode well for any en banc rehearing. Looks like it's going to be up to the Supreme Court to fix this. And in the meantime, Google is under an unconstitutional prior restraint order.

The performances of actors, singers, musicians and dancers are an integral part of the creative process in presentations to the public. Since the very first performance recordings, in sound and images, it has been accepted that performers should have some rights over those recordings and a share in the proceeds from their commercial exploitation.

Nevertheless, the first international recognition of these so-called “neighbouring rights” (rights related to copyright) did not come until adoption of the 1961 Rome Convention. This treaty gave performers in audiovisual works such as feature films, videos and television dramas rights against unauthorized broadcasts or recordings of their performances. However, and in contrast to performers in sound-only recordings (CDs, MP3 files and so on), once performers in audiovisual works had consented to the initial recording of their performance they were given no rights over its use.

... Once authorization has been given for filming a performance, actors in most countries have no control over how that performance is used. ...

The stumbling block to agreement in both 1996 and 2000 was a stand-off between the USA and the European Union over the transfer of rights. In audiovisual productions the transfer of rights from performers to producers is essential so that producers can negotiate commercial deals with cinema chains, broadcasters, DVD retailers and so on without having to seek authorization from each individual performer. A feature film, for example, may use dozens of actors, in addition to others such as screenwriters and photographers who also have rights over their contribution. Although the need to transfer rights is not disputed, different countries have different systems for doing this. In the USA performers’ rights are automatically transferred to producers, while actors’ pay is negotiated by a strong trade union, the Screen Actors Guild. In Europe, practice varies. In some European countries, transfer is automatic while in others it is presumed by law but an agreement to the contrary is possible. Other countries such as the UK have no statutory rules, leaving transfer arrangements to a contract between the performer and the producer. In addition, even after transferring authorization rights, performers in some countries retain moral rights to object to lack of attribution and distortion or derogatory treatment of their performances.

All too many judges these days seem to think that their high and powerful office gives them carte blanche to simply ramble on at length with bizarre personal opinions and then make whatever determination they prefer with scant attention paid to the actual law.

I suppose it's a byproduct of years wearing the black robe and having everybody around you bowing and scraping and hanging on your every word.

Power does corrupt; in many different ways. Perhaps it's time to end the whole judge for life concept.

To be or not to be

I should point out that the real world really isn't always that great, and if I had the option of flipping a switch to turn it off, should I be not entirely convinced to leave it on? I'm just not sure it's really done that much good (after all, it created the NSA et al), and we might be better off without it.

I should point out that many people don't realize what it's like to be the subject of an anonymous real world attack (say, like having your home broken into or your tires slashed or being tossed on the no fly list with no reason given), and people might feel differently if they were.

Positive response to the decision

I've yet to see a single lawyer I know have anything positive to say about the ruling or the gag order

Eugene Volokh makes as strong an argument as can be made for the decision. If you are willing to concede that musicians can have a copyright in their performance of a song, then by analogy an actor should be able to have a copyright in her performance.

Re: Positive response to the decision

As I pointed out yesterday, giving artists copyright over their performance creates a new layer of licensing that complicates an already over-complicated situation.

Copyright was originally intended to give writers and publishers a temporary monopoly over the distribution of their works in fixed media (e.g. music sheets, books, etc.,) for a short period so they could make money off their work, after which it would become public domain and anyone could make money off it. This is its constitutional position.

Since then, people have complicated it to add layers of "rights" for performance and control that were never meant to be. Try to imagine how actors, stuntmen, camera operators, etc. might sue to have their performances removed - or enhanced. This could well lead to having the MAFIAA on our side for once.

Re: Positive response to the decision

If you are willing to concede that musicians can have a copyright in their performance of a song, then by analogy an actor should be able to have a copyright in her performance.

First, merely performing does not grant the copyright; it's the fixing in a medium that does. The actress was not involved in the fixing in a medium. She also did not

Second, she was in the video for five seconds - and was partially dubbed over. We aren't talking about an Oscar-winning dramatic performance. We're pretty much talking about one line.

Volokh thinks the "amount of the work used" fair use test is in her favor - I think he's nuts. Five seconds is the epitome of de minimus use. He argues that those five seconds are the entirety of the work. I would argue that five seconds of acting is barely copyrightable at all, that the partial dubbing over means they did NOT use the entirety of the work, and that even without the dubbing... those five seconds were almost certainly not the entirety of the work. She was on the set for about 3.5 days and was given four pages of script in which her character appeared. Did they only shoot her in one scene and finish in one take? Then why was she there for that long? Most likely, the majority of her performance ended up on the cutting room floor, and only a tiny fraction made it to the video. SHE was not the one controlling the editing, so you cant claim that the editing was merely part of the "work" of her performance unless you concede that she was not the sole author of the "work" - and without an exclusive right she has no copyright claim.

Third, this is going to have other weird unforeseen effects. For example, the government is not allowed to seize a copyright unless is has already been transferred. But if you say every actress has a copyright in her performance and under normal circumstances merely transfers the copyright to the producer... Well. Now there's already BEEN a transfer merely by making the movie, and so the government can go seize the copyright.

And if an actress has a copyright interest in a five-second scene in a movie, what does that do to fair use? Normally a five-second clip from a movie is safe to use. But now the producers can claim that instead of a five-second clip from a movie, you've copied an entire performance by an actress that just so happens to be used in a movie. Every line gets its own copyright!

Re: Re: Positive response to the decision

And oh wow, the statutory damages that this ruling implies. If every five second performance gets its own copyright, and someone copies a 90 minute movie, that would be over 1000 separate copyright violations. For copying one movie once. If it's willful infringement, that could be $150,000 per violation, right? That's $150,000,000 in possible statutory damages.